St. Marks Plumbing & Heating Co. v. Koss Co-Graphics, Inc. , 561 N.Y.S.2d 208 ( 1990 )

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered February 26, 1990, which denied plaintiff’s motion for summary judgment as well as the motion of defendants to consolidate the action with one pending in Queens County and referred the issues of fraud and personal liability of the endorsers of a promissory note to a Special Referee to hear and report with recommendations, unanimously modified to the extent of dismissing defendant Edward Koss’ affirmative defense of lack of in personam jurisdiction and otherwise affirmed, without costs.

Plaintiff loaned defendant corporation, Koss Co-Graphics, Inc. (Koss Co.), $50,000 and Koss Co. executed a promissory note payable to plaintiff, interest free. The signatures of Edward Koss (Koss Co.’s president) and Arthur Cohen appear on the back of the note as endorsers. According to plaintiff, the note was presented to defendants on its due date for payment and defendants failed to tender payment. Defendants assert that in response to the demand Koss Co. agreed to pay quarterly interest payments of $2,000 so as to extend the loan and forestall suit. Defendants maintain that after payment of four quarterly interest payments, plaintiff commenced this action.

Plaintiff’s motion for summary judgment was denied by the IAS court which found that issues of fact precluded the granting of such relief. We find that under the circumstances here, the denial of the motion was proper. The record reveals long-standing personal relationships among the parties and the parties’ principals. Such relationships and the conduct described in defense of the action give evidence to the oral assertion by defendants that accommodations or unwritten agreements were made in respect to the note so as to raise factual issues which preclude summary judgment. (See, Rotuba Extruders v Ceppos, 46 NY2d 223, 231.)

We dismiss Edward Koss’ affirmative defense of lack of in personam jurisdiction. The record reveals that Koss was properly served.

We have considered plaintiff’s other contentions and find them to be without merit. Concur—Murphy, P. J., Carro, Rosenberger and Smith, JJ.